Right to privacy as a fundamental right: Past, present and future

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Published on:

24 Aug 2022, 5:19 pm

Five years have gone by since privacy was declared an indispensable right of personal freedom and liberty by the Supreme Court. The Leaflet chronicles the trials and tribulations of this right since then.

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EXACTLY five years ago, on this date, the right to privacy was recognised as an intrinsic part of freedom and liberty duly protected by Article 21 of the Constitution, by the nine-judge bench of the Supreme Court in Justice K S Puttaswamy(Retd.), & Anr v UOI& Ors(2017) ('Privacy judgment'). The court explained that the right to privacy, in its simplest sense, allows each human being to be left alone in a core which is inviolable.

The question of privacy as an elemental principle of the Constitution came up before the three-judge bench of the Supreme Court, while they were considering the constitutional challenge to the Aadhaar card scheme of the Union Government.

In its order dated August 11, 2015, the bench noted that the norms for demographic biometric data by the Union Government were questioned on the ground that it violates the right to privacy. However, the existence of a fundamental right to privacy was contested owing to the two previous judgements of the court. They were M P Sharma & Ors v Satish Chandra, District Magistrate Delhi & Ors(1954) and Kharak Singh v State of Uttar Pradesh & Ors(1962), both rendered by the constitutional bench of eight judges and six judges respectively, which observed that the right to privacy is not guaranteed under the Constitution. The latter case of Kharak Singh also relied on A.K. Gopalan v. State of Madras(1950) to construe fundamental rights as isolated silos. However, the court ultimately held that the right to privacy is an inalienable part of personal liberty.

The judgment surprised many who had never thought the nine-judge bench would be unanimous. Obviously, none of the judges on the bench then wanted to be on the wrong side of history. During the hearing of this historic case, people were worried at the questions the bench was asking. There were concerns because privacy is a relatively new and unusual right. It took most people time to see why it mattered. That was why the government and the many respondents articulated the opposite view.

But the Union government's stand before the Supreme Court was a strategy to slow down the Aadhaar proceedings. The government asked regressive questions, knowing fully well that any judgment upholding privacy would impose little actual restraint on it. During the two years preceding the judgment, the government and other entities who were in favour of Aadhaar had managed to obscure the debate on the right to privacy through inconsistent public statements.

As privacy was a relatively new right, it is not surprising that our Constitution makers did not feel the need to explicitly include it among our fundamental rights. But the then Attorney General for India, Mukul Rohatgi, misread the M.P.Sharma judgment, making it imperative to constitute the nine-judge bench. The rest is history.

The judgment led would-be litigants in the subsequent cases to articulate the dignity and personal liberty arguments much more clearly than they could earlier. Those seeking decriminalisation of homosexuality finally succeeded in doing so, since the Supreme Court held that the choice of partner falls firmly within the right to privacy.

The unfortunate aspect of the judgment was that it allowed a three-part test on the part of the government to violate privacy. The test was rather broadly worded. These include a compelling state interest, a reasonable procedure established by law, and the doctrine of proportionality. As a result, the judiciary continues to vacillate on informational privacy and allows the state to invade the right to privacy. This was clear from how the Aadhaar Act survived the legal scrutiny, despite violating the right to privacy.

One of the most notable parts of the judgment was the importance given to informational and data privacy. Information on the internet can be stored, accessed and disseminated without notice and it is difficult to detect an invasion of data because of its invisibility. There is the constant creation of new knowledge on the internet and it complicates data privacy as it often involves information which the individual did not possess and thus, could not disclose, knowingly or otherwise. Despite the flagged concerns over informational and data privacy, India still does not have a law to protect personal data. Therefore, one wonders whether this aspect of the landmark judgment only paid lip service to the right to informational and data privacy.

The Personal Data Protection Bill, 2019, was introduced in Lok Sabha on December 11, 2019, after the recommendation of a committee headed by Justice B.N Srikrishna, former judge of the Supreme Court. The Bill sought to provide for the protection of the personal data of individuals and establish a Data Protection Authority, although it gave leeway to the Union Government to exempt its agencies from its applications.

The Bill diverged widely from the Justice B.N Srikrishna committee's report and failed to build a legal framework for the digital ecosystem based on privacy judgment. Thus, it attracted widespread criticism from non-governmental organisations, academicians, and lawyers. It was later referred to the Joint Parliamentary Committee('JPC') which dealt with it extensively and recommended 81 amendments.

The JPC, in its report , observed that the ambit of the Bill should be widened and the non-personal data should also be regulated because it's difficult to distinguish between personal data and non-personal data. Thus, the Bill was renamed as Data Protection Bill, 2021. However, the Bill did not see the light of the day and was withdrawn on August 3. The Supreme Court advocate, Vrinda Bhandari, has termed the withdrawal a bad move.

As Mihir Desai and Lara Jesani presciently concluded their article one year after the judgment, "While it is too early to predict the trajectory that jurisprudence on privacy will take, the Puttaswamy judgment is clearly one not to be taken lightly or celebrated without self-restraint in the coming future, much like the right to privacy itself".

The Leaflet has covered the issues connected to the right to privacy in detail and continues to examine key questions about its future. Do reports of coercion in Aadhaar-voter ID linking raise privacy concerns? Does the Criminal Procedure (Identification) Act, 2022 compromise the right to privacy? Will Facial Recognition Technologies hasten our descent into a mass surveillance State?

Below are some of the highlights of The Leaflet's coverage

Our Most Recent Coverage

Aadhaar advisory: the continuing saga of UIDAI's breach of privacy rights

On May 27, the regional office of the UIDAI in Bengaluru issued a press release that refrained people from sharing their photocopies of Aadhaar cards with other organisations as they could be "misused". The advisory was redacted with immediate effect. The article discusses concerns on authentication or verification, and the CAG report, and reports what the experts say.